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Steven D. Smith
These days, if you announce that the Supreme Court is doing politics rather than law you will provoke more yawns than protests. But what sort of politics is the Court doing?
Justice Antonin Scalia frequently charges the Court with stepping out of its judicial role and taking sides in the culture wars. That is eminently plausible. Still, we are admonished to have charity, and a more charitable interpretation is at least possible. Some of the Justices, including some who are most centrally placed on the Court, seem to have a very different self-understanding. They seem to see themselves as performing the political function of national conciliation.
In this more charitable interpretation, these Justices see themselves not as taking sides in the culture wars but rather as working to reconcile the warring factions. Things fall apart; the center (meaning the Court) must hold them together.
A theme of conciliation and inclusion was apparent, for instance, in Justice Sandra Day O'Connor's opinions almost as soon as she took her place on the Court. In Lynch v. Donnelly (1984), the first nativity scene case, O'Connor proposed that the establishment provision of the First Amendment should be construed to prohibit government from doing anything that would send a message either "endorsing" or "disapproving" religion. Although O'Connor herself seemed not to appreciate the fact, this was no modest proposal. Faithfully applied, the "no endorsement" prohibition would render unconstitutional such landmarks as the Declaration of Independence, Lincoln's Second Inaugural Address, and, ironically, Jefferson's famous "Virginia Statute for Religious Freedom." It should come as no surprise, then, that the "no endorsement" doctrine was central to the Ninth Circuit's 2002 ruling in the Newdow case that the words "under God" in the Pledge of Allegiance violate the Constitution. Such a potentially disruptive innovation cries out for justification. So it is noteworthy that O'Connor has not tried to justify the doctrine by arguing that it derives from the text of the First Amendment, or from the Framers' intentions, or even from the American constitutional tradition.
Her principal rationale, rather, has explicitly been in terms of current needs for conciliation and inclusion: messages of endorsement or disapproval of religion are impermissible because they cause some people to feel like outsiders or "lesser members of the political community." The "no endorsement" doctrine, which at least on its face prohibits both endorsement and disapproval, and hence purports to protect both believers and nonbelievers against offense, seeks to avoid such alienation and so to hold all citizens together in full political communion.
The Court's mediating role was even more explicitly articulated in the much-discussed joint opinion in Planned Parenthood v. Casey (1992). In previous cases, both Justice O'Connor and Justice Anthony Kennedy had openly doubted the constitutional foundations of Roe v. Wade (1973), which had constructed abortion rights according to an uncouth trimester framework that was palpably an attempt at political compromise. In fact, we have recently learned from private papers of the late Justice Harry Blackmun released to the public in March that Kennedy initially planned to vote in Casey to overturn Roe. But in the Casey joint opinion he eventually joined O'Connor and Justice David Souter in reaffirming Roe's "central holding" — with the expressed purpose, or at least the hope, of bringing the nation together on this "intensely divisive controversy." These Justices portrayed the Court's role as one of "call[ing] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution."
Like Roe, Casey was manifestly a compromise — a legal compromise and, at least for some Justices, a moral compromise as well. And the Justices compromised again last term in their decisions addressing another intensely divisive controversy — namely, affirmative action. There are well-developed ways to construe the Fourteenth Amendment so as to avoid invalidating affirmative action programs; the most common is to invoke distinctions between racial classifications that are "invidious" and those that are "benign" or "remedial." But these are distinctions fraught with difficulties, even with dangers, and in previous cases Justice O'Connor had shunned them. "The standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited," she had insisted in Adarand Constructors v. Pena (1995). "[A]ll governmental actions based on race" must be subjected to "a most searching examination" and upheld only if necessary to serve a "compelling interest." But last term, in the face of widespread support for affirmative action by universities and also some major corporate executives and military officials, O'Connor again retreated in search of a middle ground.
So it now turns out that a "most searching examination" means something more like a studiously superficial examination. A public university still cannot be too brazen about using racial classifications in its admissions decisions: it cannot actually and formally assign a set numerical value to an applicant's race. But if the university can simply find a way to accomplish the same result in a slightly less obtrusive way — by, for example, treating race as an elastic "factor" in its admissions decisions — then the judicial reviewers will be satisfied. And a law school's desire to have a racially diverse student body can count as the "compelling interest" that justifies this marginally more muted but equally effective racial discrimination — at least so long as the school assures us that it will try to quit using race as a factor within something like twenty-five years. (So said O'Connor in her opinion for the majority in Grutter.)
Both supporters and critics of the affirmative action decisions (Gratz and Grutter) are naturally skeptical about whether there is more than a cosmetic difference between the sorts of programs that now are permissible and those that are not. They are also skeptical about whether in a future case the Court would find an interest of comparable magnitude "compelling" if the classification burdened racial minorities. Avoiding the disruption and violence that school desegregation often and predictably generated would seem to have been at least as "compelling" an interest as the University of Michigan's desire to have a diverse student body: hence the logic of the recent decisions might suggest that Brown v. Board of Education (1954) should now come out the other way.
But this is a facetious suggestion. As you will learn to your chagrin if you have the misfortune of being required to teach these cases, the Court's affirmative action decisions were plainly not about logic — or even about law in any serious sense. They were political compromises calculated to placate the major interested parties, and to avoid the divisiveness that the Court feared would ensue if affirmative action were ended. The animating vision was a noble one. It was, wrote O'Connor, "the dream of one Nation, indivisible."
Conciliation is a laudable goal. It is at least akin to "dispute resolution," which historically has been the essential judicial function; so it is understandable that Justices might regard conciliation as a task fitting for the Court to undertake. In addition, conciliation sometimes involves painful compromise — even of basic principles, as such statesmen as Madison and Lincoln learned. Often we are willing to forgive, or even commend, otherwise unseemly compromises entered into for such admirable purposes.
So if the Justices are seeking to promote national conciliation, we may at least admire their motives. They mean well.
Whether the Supreme Court is qualified to serve as such a conciliator is a different question. The description in the Casey opinion of the Court as "call[ing] the contending sides of a national controversy to end their national division" struck some observers as grandiose, bordering on delusional. In this vein, Robert Nagel described the Justices' self-portrayal as "an outpouring of self-important romance," reminiscent of a "late-night fit of drunken sentimentality." Moreover, the leading precedent for this self-portrayal is ominous. In Dred Scott v. Sanford (1857), the Supreme Court similarly attempted to call the contending sides of a national controversy to end their national division: it attempted to settle the issue of slavery once and for all. Four years later the nation was engaged in a civil war that would wreak death and destruction on a horrifying scale.
Times and issues change, of course; the Court might be more successful in conciliation today. But many of the same constraints persist. Like it or not, the Court is still in some sense a court. It cannot just round up the interested parties and broker an acceptable political compromise; it must act, or at least pretend to act, like a law-interpreting institution. And this means that the Court must present its conciliating compromises as if they are derived in some plausible way, if not from the Constitution itself, then at least from prevailing constitutional doctrines. How to do this?
Legal justifications vary, obviously, depending among other things on whether the particular controversies to be conciliated are presented in cases litigated under the First Amendment, the Fourteenth Amendment, or some other provision of the Constitution. But underlying the surface differences in doctrine and vocabulary, a favored strategy seems to be emerging: we might call it the "evil-motives strategy." Asked to justify a law, program, or regulation, the government that sponsored it will predictably offer up some respectable-looking purpose or interest. If the Justices want to uphold the measure, they can simply accept that justification. But if they want to invalidate a divisive measure, they can find the stated purpose to be merely a cover for some more nefarious motive — for racial or religious bigotry, or "animus," or "a bare desire to harm a politically unpopular group" (quoting now from the 1996 decision in Romer v. Evans). In essence, the measure is struck down for being a product of hatred.
On their face, to be sure, most constitutional doctrines do not make evil motives the test of validity (though some do). The explicit vocabulary often is about the "balancing" of state and individual interests, or about the protection of "fundamental rights." But the Court has never even pretended to work out any methodology for actually balancing competing interests, which are, in truth, both unquantifiable and incommensurable. And "fundamental rights" not actually mentioned in the Constitution will always be controversial, and squishy. In the cases considering sodomy laws, for example, Justices and scholars clash over whether the right at stake is a right to engage in homosexual sodomy, a more general right of sexual freedom, or (as Justice Blackmun insisted) an amorphous "right to be let alone." And they argue about whether the right, whatever it is, comes under the rubric of "liberty," or "privacy," or "equality," or something else.
Students of constitutional law who must study these cases may applaud or deplore the various decisions in accordance with their own convictions and sympathies; but they quickly learn not to expect anything like a cogent explanation of why, say, a right to terminate a pregnancy is "fundamental," but a right to terminate one's own life is not. The plain fact is that, realistically speaking, judges have little or no competence to balance interests or, where the Constitution is silent, to give a plausible account of what are and what are not fundamental rights. It is doubtful whether social scientists or political philosophers could perform those tasks to anyone's satisfaction; and judges are in any case not social scientists or philosophers.
Determining and assessing motives, on the other hand, may seem like something more within the province of judges. Don't judges do that kind of thing all the time — in criminal cases, for example? Thus a focus on motivation has long been evident in racial discrimination cases, where discriminatory purpose is the main test of constitutionality, and also in religion cases. The Court has invalidated measures providing a "moment of silence" in public schools, as well as measures mandating the "balanced treatment" of evolution and creationism in a school's curriculum, because the Justices were sure that, behind the respectable purposes offered for these measures, there lay the sinister motive of establishing religion. And the Court struck down ordinances passed by the city of Hialeah restricting the ritual slaughter of animals by rejecting as mere pretexts the city's protestations that it was acting to prevent unwarranted cruelty to animals and to safeguard public health. (The animal carcasses were typically dumped on lawns or in public places.) The Justices ascertained, at least to their own satisfaction, that Hialeah was in reality acting on the evil motive of hostility to the Santeria religion.
In other contexts, the resort to an evil-motives jurisprudence is veiled but still discernible on close examination. Thus a generation ago the eminent constitutional scholars John Hart Ely and Cass Sunstein independently showed how a host of constitutional doctrines that do not explicitly make motivation the test of constitutionality are in fact devices for sniffing out illegitimate governmental purposes.
In recent years, the evil-motives device has been conspicuous in the Court's decisions dealing with homosexuality in the law. In Romer, the Court struck down Colorado's Amendment 2, which denied "protected status" in antidiscrimination laws to homosexuals. The cultural and political forces that led to the amendment's enactment were complex (see Robert F. Nagel, "Playing Defense in Colorado," FT May 1998). But the majority of the Court saw no complexity. Justice Kennedy's majority opinion described a black-and-white world in which supporters of the measure were acting simply from "animus," or from a "bare desire to harm a politically unpopular group." And last term, in Lawrence v. Texas, Kennedy again wrote for the Court to declare that a Texas law prohibiting homosexual sodomy was like Amendment 2 in being "born of animosity toward the class of persons affected." Concurring, Justice O'Connor insisted that by prohibiting homosexual conduct the state had acted to "brand all homosexuals as criminals."
The evil-motives strategy in modern constitutional decisions is the product of legal discourse and doctrine. But the Court might also have embraced the same strategy under the influence of contemporary moral reasoning.
As powerfully diagnosed in Alasdair MacIntyre's classic After Virtue, modern moral reasoning is in disarray. There is no shared moral framework or vocabulary, MacIntyre showed, with which people today can reason together to arrive at cogent conclusions on moral issues. The discord does not reflect any paucity of moral theories. On the contrary, theories and arguments abound. Many of the leading approaches are commonly grouped into competing camps of deontologists and Kantians on the one hand and consequentialists or utilitarians on the other. But there is often wide divergence within these camps; and each camp also makes telling criticisms against the other. In addition, many moral views reflect perspectives — in particular, perspectives grounded in religious beliefs — that do not fit comfortably into either the Kantian or utilitarian camps. As a consequence of this unruly state of affairs, most forms of moral argument will seem to some constituencies wrong from the start — that is, grounded from the outset in unacceptable moral premises.
Even so, there is at least one proposition on which virtually everyone might be expected to converge. Nearly everyone can agree, that is, that it is morally wrong to act on the basis of hatred.
Kantians can readily accept the proposition. If moral reflection is rooted in the assumption that the only thing that is good without qualification is a "good will," as Kant maintained, then a will animated by hatred seems just the opposite: it is almost the embodiment of moral evil. And a hateful action obviously flunks the test of Kant's famous categorical imperative, which holds that we should act only on maxims that we can consistently will to be universal laws, laws followed by everyone. Kant explained that even harmless selfishness is condemned by this test, since we might sometimes need the help of others but by a maxim of selfishness would deprive ourselves of that benefit. Surely this conclusion would apply a fortiori to actions done from, to borrow the Supreme Court's phrase, "a bare desire to harm."
For consequentialists it should be only slightly more difficult to condemn actions done from hatred. It is true that if people get satisfaction from acting hatefully, a conscientious utilitarian presumably should count that satisfaction as a prima facie good, so far as it goes. Strict utilitarians do occasionally worry about hypothetical situations in which the pleasure experienced by sadistic torturers exceeds the pain felt by the victims. As a practical matter, though, it is easy to conclude that in the real world, actions done from love or at least from enlightened self-interest are likely to produce more net satisfaction than actions done from hatred.
If we consider the matter from a religious perspective, the answer again seems clear. Christian teaching famously exhorts us to love, not hate; we are to love even our enemies, to pray for those who despitefully use us. Other religions by and large affirm this essential admonition against hating, even if a religious thinker occasionally suggests that hatred may be appropriate as a response to extraordinary instances of deliberate, egregious malevolence.
In short, even in the midst of a chaos of moral perspectives, virtually everyone will agree that it is wrong to act on the basis of hatred. Consequently, it is utterly predictable that advocates would seek to defend their moral judgments against those who do not share them by attributing their opposition to hatred. There is ample cause to worry about a cultural climate in which ascriptions of hatred become a main staple of moral discourse. But in our modern situation, this may well be the only kind of argument that is compatible with virtually everyone's moral premises.
So it is readily understandable that the Supreme Court would adopt the evil-motives strategy as its preferred mode of justification for striking down measures of which it disapproves. But how does this strategy comport with the apparent desire of at least some Justices to act as national conciliator — to be the center that holds things together?
It seems evident that the Court's technique is not well calculated to promote mutual understanding. Let's look first at its effect on the losing litigants is such cases. With its evil-motives discourse, the Court makes it clear to citizens who support an invalidated measure — such as the Colorado Amendment 2 struck down in Romer — not only that they have lost but also that they have masked and misrepresented their real motive, which, as the Court has discovered, is hatred.
The expressed moral convictions and prudential concerns of these citizens are thus disparaged without any serious engagement or attempt at genuine understanding. Such understanding might jeopardize the ascription of merely hateful motives. It would be inconvenient, after all, to have to acknowledge that the people disfavored by a judicial decision are not actually as bad as the Court for its beneficial purposes needs them to be.
The parties that prevail in such litigation will presumably be happier with the Court's explanation. But they will not thereby be induced to hold a more empathetic or magnanimous opinion of their adversaries. On the contrary, the human tendency to ascribe evil motives to those we oppose will be, for the prevailing parties, officially confirmed and rewarded.
More generally, the Court's approach not only countenances but indeed mandates a discourse of demonization in which adversaries are required to litigate their differences by asserting and withstanding ascriptions of bigotry, intolerance, hatred, and "animus." In traditional logic and rhetoric, the so-called ad hominem argument is typically treated as a certifiable fallacy. But if evil motives become the test of constitutionality, then disputants are not merely authorized but indeed required to trade in just that sort of argument. Robert Nagel notes that a good deal of modern constitutional jurisprudence amounts to little more than thinly veiled exercises in name-calling, as the Justices peremptorily dismiss the positions they disfavor as products of "prejudice," "fear," "antipathy," "irrationality," or "a bare . . . desire to harm a politically unpopular group." "[T]o a remarkable extent," Nagel observes, "our courts have become places where the name-calling and exaggeration that mark the lower depths of our political debate are simply given a more acceptable, authoritative form."
Ironies arise. A central purpose of much modern constitutional jurisprudence has been to resist and root out demeaning "stereotypes." Though problematic in various respects, this effort to eliminate stereotypes seems nicely compatible with the purpose of conciliation that animates many of the Court's decisions. Stereotypes, after all, flatten and alienate and depersonalize; they thereby operate to block their victims from participating in the community as full human persons. Yet the jurisprudence of evil motives works precisely by trading in the most flagrant and demeaning of stereotypes. Blinding itself and those who join in the Court's rhetoric to the complexities of human affairs and to the intricate interplay of concerns and moral judgments that manifest themselves in a measure such as Amendment 2, the jurisprudence of evil motives reduces large constituencies to the simple categories of homophobes, or racists, or sexists.
Yet perhaps the most damaging aspect of the Court's modern jurisprudence is that it upsets the delicate balance between the ennobling and destructive aspects of our moral aspirations. These aspirations are ennobling in that they remind us that we are not mere pursuers of self-gratification but rather creatures with moral obligations and commitments, which is surely one of the primary foundations of claims to human dignity. Yet moral convictions can also be a source of destruction and degradation, in at least two distinct ways. First, in a pluralistic community, moral convictions diverge, and they can thereby produce division, even violent conflict. Second, as humans we routinely fall short of our own moral commitments, thus incurring criticism and condemnation, both from others and ourselves. Such condemnation can lead to loathing, self-loathing, and despair.
Probably the principal device for reconciling these aspects of our moral nature consists of the venerable admonition to "hate the sin but love the sinner." At least up to a point, I can deplore what you do but still rejoice in your existence, recognizing that you are a valuable human being; indeed, I can recognize that you are valuable in part because you have moral commitments, even if I disagree with them. And I can deplore what I do and yet resist despair, recognizing that for all my manifold deficiencies I am still a valuable human being possessed of worth and dignity.
Of course, we routinely fall short of living up to this moral ideal (as to many others). The principle nonetheless works to mediate between our ennobling moral commitments and our destructive moral conflicts and derelictions.
Tragically, the Supreme Court's evil-motives jurisprudence attempts to negate that principle, or to foreclose any resort to it. Moral disapproval of conduct, such as homosexual acts, is equated with hostility toward and hatred of persons who engage in that conduct, and even of persons with a proclivity to engage in it, whether they actually do so or not.
This equation is nowhere clearer than in Justice O'Connor's concurring opinion in Lawrence v. Texas. Moral disapproval of conduct, O'Connor there maintains, amounts to moral disapproval of the class or group with which that conduct is "closely correlated." And "[m]oral disapproval of this group" is in turn tantamount for legal purposes to "a bare desire to harm the group." Consequently, by criminalizing homosexual conduct, Texas acted from the legal equivalent of a bare desire to harm.
Texas protested that it had done no such thing; it had merely declared certain conduct to be against the law, as a state does with every single criminal prohibition it enacts. But O'Connor would have none of this: condemning the conduct was equivalent, she insisted, to condemning the class of people who might be inclined to engage in such conduct.
Under the weight of these morality-flattening equivalences, any possibility of hating the sin but loving the sinner is crushed. On the contrary, disapproval of what you regard as sin amounts to (and indeed is simply the expression of) hatred of the sinners.
In such Supreme Court opinion-making, the implicit causal sequence is curious, to say the least. Suppose that, as a fallible and fallen human being, I do not succeed in hating the sin but loving the sinner. I hate both. I shouldn't, but that's the way I am. Even so, what is the more plausible causal account? Do I start by disapproving of some action as sinful, and then lapse into hating the actor? Or do I begin by hating the person and then project my hatred onto some action that this person performs?
The evil-motives account of my position would seem to presuppose the latter: my ostensible moral disapproval of conduct is declared illegitimate because it is in reality merely a manifestation of hatred toward persons who engage in that conduct. But surely this is a peculiar view. Even supposing that I am basically just a hateful sort of person, why would I pick out (from among all the potential candidates) some particular class of people to hate, unless I already had some objection to the conduct in terms of which that class is defined?
Going further, wasn't Justice O'Connor herself plainly indicating disapproval, both legal and moral, of the beliefs and actions of that class of Texas citizens and officials who had supported the sodomy statute? Using her own reasoning, are we thus forced to infer that Justice O'Connor was simply hostile to that class of people, or that she was acting from a bare desire to harm them? Should we likewise infer that in Romer Justices Kennedy and O'Connor were driven by animus toward the more than eight hundred thousand citizens of Colorado who voted Amendment 2 into law?
These demeaning inferences admittedly offend logic and human experience, not to mention charity — but no more so than the logic-impaired and experience-impervious ad hominem assertions tossed about by Supreme Court Justices in their Romer and Lawrence opinions.
The culture wars are no negligible concern. We have learned from recent history that even nations that appear to be powerful, stable, and civilized can quickly collapse into paralyzing strife and even destructive anarchy. The prospect is unsettling. So while we may rightly doubt the propriety of the Supreme Court's conception of itself as national conciliator, we may nonetheless admire the motives of Justices who want to reduce conflict and hold the nation together.
Unfortunately, in our current legal and moral climate, the effort by Justices to act as mediators pushes them to adopt tactics that are likely to aggravate the very problem they seek to address. If the nation's divisions are to be healed, the healing will not come about by life-tenured officials issuing indictments that accuse millions of their fellow-citizens of animus, prejudice, hostility, or hatred.
Steven D. Smith. "Conciliating Hatred." First Things 144 (June/July 2004): 17-23.
This article is reprinted with permission from First Things: A Monthly Journal of Religion and Public Life published by the Institute on Religion and Public Life, 156 Fifth Avenue, Suite 400, New York, NY 10010. To subscribe to First Things call 1-800-783-4903.
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Steven D. Smith is Warren Distinguished Professor of Law at the University of San Diego. He is also Co-Director, Institute for Law and Philosophy, and Book Review Editor, Journal of Law and Religion. He is the author of Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom, Getting over Equality: A Critical Diagnosis of Religious Freedom in America, and forthcoming Law's Quandary (Harvard University Press, December 2004).
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